SAFER Fights Blue-Book Language

by Ari Armstrong, September 13, 2006

Backers of Amendment 44, which if approved "legalizes the possession of up to one ounce of marijuana for adults 21 years of age or older," filed a lawsuit the morning of September 13 in an effort to force a change to the state-approved "Blue Book," a guide for voters.

By afternoon, Denver District Court Judge John McMullen "agreed with an assertion by the Legislative Council's attorney, Richard Kaufman, who cited Colorado Supreme Court precedent stating that courts have no jurisdiction in the Legislative Council's wording of the booklet because that is a legislative process... McMullen said a court could only take up a legal challenge after the amendment was voted on," according to an article by Alan Gathright for the Rocky Mountain News.

Mason Tvert, the campaign director of SAFER (Safer Alternative For Enjoyable Recreation), distributed a media advisory on September 12 announcing the suit. The release states: "The 'Blue Book,' which is required by the Colorado Constitution to be 'fair and impartial,' states that Amendment 44 would make it legal for an individual 21 or older to give less than one ounce of marijuana to individuals under the age of 18 as long as there is no compensation. This is actually not true, however, as it will undoubtedly remain completely illegal for an individual 21 or older to give any amount of marijuana to a minor."

The dispute involves two related passages from the "final draft" of the blue-book language approved by Legislative Council, a group that answers to the state's legislature. (The Council's analysis for Amendment 44 is available through a state web page and is archived here.)

First, the language states, "Possession would include consumption or use, as long as it does not occur in public. It also would include transferring up to one ounce of marijuana to another individual 15 years of age or older as long as there is no compensation, although possession for those under 21 years of age would remain illegal."

Second, the language states that various "marijuana offenses will continue to be illegal under state law if Amendment 44 passes," including, "for individuals 18 years of age and older, transferring any amount of marijuana to a person under 15 years of age..."

Tvert counters in his release, "Our ballot measure will not make it legal to give marijuana to 15 year-olds."

According to David Montero's earlier September 13 article for the Rocky Mountain News, Tvert "admitted there is a current loophole in the amendment that is murky on whether [marijuana] can be transferred to anyone between the ages of 18 and 20. He said that if the amendment passes, legislators 'will climb over each other to be first to introduce such a bill'."

The main question, then, is whether adults 21 years of age and older would suffer criminal penalties for transferring under an ounce of marijuana, without compensation, to a minor age 15, 16, or 17. The secondary question is whether adults 21 years of age and older would suffer criminal penalties for transferring under an ounce of marijuana, without compensation, to an adult age 18, 19, or 20.

However, the language of Amendment 44 is silent on the matter of distribution. Thus, it is also silent on the matter of distribution of under an ounce without compensation to minors and to adults under the age of 21.

Here's how the official title describes Amendment 44: "An amendment to section 18-18-406 (1) of the Colorado revised statutes making legal the possession of one ounce or less of marihuana for any person twenty-one years of age or older."

The referenced section would be amended to read, "Any person UNDER TWENTY-ONE YEARS OF AGE who possesses not more than one ounce of marihuana commits a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars. This law shall take effect on December 7, 2006."

Analysis

So where is the blue-book language coming from regarding people "15 years of age or older?"

Steve Fox, listed as Executive Director for SAFER in the blue-book documents, states that the reference to the age of 15 "is already part of the Colorado Revised Statutes (18-18-406
(5), stating the general rule; and 18-18-406(7), citing exceptions that leave an opening for transferring less than an ounce of marijuana to individuals 15 years of age and older with no punishment greater than the current penalty for mere possession)."

18-18-406(5) states: "Transferring or dispensing not more than one ounce of marihuana from one person to another for no consideration shall be deemed possession and not dispensing or sale thereof."

So, because dispensing in this case is defined as "not dispensing" -- and only in statutes is is considered good form to define things as their opposites -- this creates an oddity when combined with the changes of Amendment 44 and the language of 18-18-406(7)(b), which states: "Any person eighteen years of age or older who transfers or dispenses any amount of marihuana, with or without consideration, to any person under the age of fifteen years commits a class 4 felony..."

Significantly, under the current language of this particular statute, dispensing when defined as "not dispensing" to somebody age 15 or over is only a petty offense.

As Tvert's lawyer Robert Corry notes in his complaint, the language of 18-18 is in this matter overridden by the language of 18-6-701. Here's what that statute says:

"18-6-701. Contributing to the delinquency of a minor.

"(1) Any person who induces, aids, or encourages a child to violate any federal or state law, municipal or county ordinance, or court order commits contributing to the delinquency of a minor. For the purposes of this section, the term "child" means any person under the age of eighteen years.

"(2) Contributing to the delinquency of a minor is a class 4 felony."

(Fox did not mention this statute in his reply to Legislative Council dated August 22, 2006.)

So the blue-book language is indeed deceitful. It omits relevant information and thus misrepresents the nature of Amendment 44. It states that "possession... would include transferring up to one ounce of marijuana to another individual 15 years of age or older as long as there is no compensation," but such transfer would still be illegal. The blue-book language states that it "will continue to be illegal... for individuals 18 years of age and older, transferring of marijuana to a person under 15 years of age," but it will also continue to be illegal to transfer marijuana to any minor.

Tvert told Gathright, "I'm going to make it clear the great lengths that our government has gone to to lie to the voters of this state about the effects of this initiative."

Lawsuit to remove false Blue Book language will be filed in Denver court Wednesday morning

Legislative Council director and House Speaker refuse to answer key legal question in controversy

Contact: Mason Tvert, SAFER campaign director, 720-255-4340

Attachments: 1) Lawsuit
2) Affidavit

DENVER - On Wednesday, September 13, at 8 a.m., the lead proponent of an initiative to make marijuana legal for adults will file a lawsuit to temporarily halt the production of the voter information booklet -- known as the "Blue Book" -- and request a judge review the incorrect information in the analysis of Amendment 44.

The "Blue Book," which is required by the Colorado Constitution to be "fair and impartial," states that Amendment 44 would make it legal for an individual 21 or older to give less than one ounce of marijuana to individuals under the age of 18 as long as there is no compensation.

This is actually not true, however, as it will undoubtedly remain completely illegal for an individual 21 or older to give any amount of marijuana to a minor.

Despite the fact that CRS 18-6-701 regarding "contributing to the delinquency of a minor" would prohibit such behavior, the Legislative Council and its chairman, House Speaker Andrew Romanoff, have refused to take any action to correct the false information.

"It seems that the Speaker is confused about this matter," said SAFER Campaign Director Mason Tvert. "He was quoted yesterday saying, 'It's not the job of the Legislative Council to fix flawed ballot measures on their way to the ballot.' But this suit is not about the ballot measure. It is about the flawed analysis produced by the Speaker's committee. Our ballot measure will not make it legal to give marijuana to 15 year-olds. Yet the analysis says that it would. Does he expect us to do nothing while his committee lies to the people of Colorado?"

"Legislative Council staff director Kirk Mlinek seems equally confused about the definition of impartial, which means 'favoring no one side or party more than another,'" said Tvert. "Far from being impartial, he followed the recommendation of four of our opponents -- including two federal officials -- to include factually erroneous language, while dismissing our plea to take it out. He ignored a clear provision of law and bent over backwards to fulfill the wishes of our opponents. Most troubling, he has yet to answer the direct question: Will it be illegal for adults to give marijuana to minors if this initiative passes? If the answer is 'yes,' then he should do what is right and join us in asking the court to modify the language."

"The misinformation printed in the voting guide has already been used by our opponents in an argument against Amendment 44 and we have received E-mails from many confused voters," Tvert said. "We hope the truth will emerge in this case and the voters constitutional right to receive 'fair and impartial' analysis on the true effects of the measure will be restored."

What: Filing of lawsuit to halt production of state-issued voting guides with incorrect information